There is no hope in hell for the Ocampo Six to escape the ruling of the judges of the ICC’s pre trial chamber II. Even with Judge Hans-Peter Kaul claiming the six’s alleged offences do not meet the ICC requirement for crime against humanity, the chances are that in the final analysis they will have to answer some charges before either an ICC court or a locally established one.
In other words there are remote chances of the six being acquitted before some form of trial takes place. Since the deferral attempts have been thrown out of the window at the Security Council’s informal meeting, the only way for the accused Kenyans to be given a fair trial is through the guidance of both the Rome Statute and the International Crimes Act of 2008. There is no way Judge Hans-Peter Kaul’s dissenting view can get the Kenyans off the hook.
Making his position known before concluding that no crimes against humanity were committed in Kenya, Judge Kaul confessed that he had taken that position with a heavy heart. He said he was profoundly aware of the crimes and atrocities described in the application for summonses to appear for the three suspects William Ruto, Henry Kosgey and Joshua Sang , pursuant to article 58(7) of the Statute through which Moreno–Ocampo requested that the Pre-Trial Chamber issues summonses for the six suspects.
Though Kaul opposed the move, the summonses were eventually issued and that is why the Kenyans are preparing to go to The Hague. While clarifying his position, Kaul said he understood and sympathized with the hopes and expectations of the victims of the crimes committed in different locations, including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas and Yamumbi), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts. He said he was aware of the victims' expectation that those responsible for these crimes should be brought to justice.
Kaul said: “I am also painfully aware that there are currently many citizens in the Republic of Kenya who hope for and support the intervention of the Court in this country because they do not have confidence in their own criminal justice system.”He said in these circumstances, he would like to reiterate his request to all those in the Republic of Kenya who yearn for justice and support the intervention of the ICC with regard to the crimes alleged in Moreno-Ocampo's application to understand and accept that there were, in law and in the existing systems of criminal justice in this world, essentially two different categories of crimes which were crucial in the present case.
According to him these were, on the one side, international crimes of concern to the
international community as a whole, in particular genocide, crimes against humanity, and war crimes and on the other side there were, common crimes, albeit of a serious nature, prosecuted by national criminal justice systems, such as that of the Republic of Kenya. The judge believed a demarcation line must be drawn between international crimes and human rights infractions; between international crimes and ordinary crimes; between those crimes subject to international jurisdiction and those punishable under domestic penal legislation.
Consequently Kaul had no doubt that the crimes alleged by Moreno-Ocampo against William Ruto, Henry Kosgey and Joshua Sang fell within the competence of the criminal justice authorities of the Republic of Kenya as a matter to be investigated and prosecuted under Kenyan criminal law. That is not the same thing as acquitting Ruto, Kosgey and Sang. As a matter of fact the judge says he is satisfied that William Ruto made available guns, grenades and gas cylinders to selected perpetrators.
He says the evidence tends to show that William Ruto promised perpetrators monetary reward in exchange for the destruction of Kikuyu buildings and every Kikuyu person killed. The judge also says he is satisfied that William Ruto was part of the coordinating efforts prior to the outbreak of the violence in Uasin Gishu and Nandi Districts between 30 December 2007 to the end of January 2008. According to him the evidence also tends to demonstrate that Henry Kosgey promised the perpetrators immunity for the crimes. He noted that the Moreno-Ocampo made no allegation of Joshua Sang's involvement in the Military Branch.
But the dissenting Judge believes that Kass FM was used as a communication channel by the Kalenjin audience to express inflammatory remarks and discriminatory views against non-Kalenjin communities. He said information was also available that messages were broadcasted on Kass FM for the erection of roadblocks. These being the views of dissenting judge at the pre-trial Chamber II, he cannot be of much use to the Ocampo Six except for the fact that he believes the whole allegations against the suspects are not serious enough to fall under the jurisdiction of the ICC.
So far the Government of Kenya has never claimed that the Ocampo Six were really innocent people. What the Kibaki faction of the Government wants is to be given an opportunity to try the suspects locally. Since the deferral attempts have failed then what remains on the table is ODM’s suggestion of a referral. According to the Rome Statutes issues of referrals are to be found in Article 14 which says that a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.
It also says as far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.And as far as Section Four of the International Crimes Act of 2008 is concerned the provisions of the Rome Statute shall have the force of law in Kenya in relation to the making of requests by the ICC to Kenya for assistance and the method of dealing with those requests; the conduct of an investigation by the Prosecutor or the ICC; the bringing and determination of proceedings before the ICC; the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters. According to the Kenyan law the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests shall be guided by the Rome Statute.
This being the case it seems Kenya can do very little to disentangle itself from the ICC whether the trials take place in The Hague or in this country. Rather than politicizing the expected trials and connecting them to the next Presidential elections , Kenyan politicians would prove to all the voters in this country, and indeed to the international community , that they mean business in bringing about true justice for all if they simply obeyed the law. Any attempt to take illegal shortcuts and protect the suspected Ocampo Six will only be seen by the majority of Kenyans, backed by the international community, as the extension of crimes committed against innocent Kenyans after the 2007 elections.
Sunday, March 27, 2011
Friday, March 25, 2011
PNU admissibility challenge hopeless
PNU/KKK determination to avoid Luis Moreno-Ocampo’s charges at the ICC in The Hague appears to be facing a flop. To begin with the coalition Government still does not see eye to eye on the deferral issue. Whereas the PNU/KKK group is talking of the deferral, ODM still prefers referral. The terms are both found in the Rome Statute and they don’t men the same thing.
Article 16 which deals with the deferral of investigation or prosecution says no investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council has requested the Court to that effect. It also says that request may be renewed by the Council under the same conditions. After meeting informally the Security Council rejected the PNU/KKK request for the deferral of the Kenyan case at ICC.
The only hope for the KKK/PNU to save the six suspects from the charges is by the use of admissibility challenges. The issue of admissibility is to be found in Article 17of the Rome Statute which basically says though the ICC is expected to be complementary to national criminal jurisdictions, it is nevertheless a permanent institution that has the power to exercise its jurisdiction over persons for the most serious crimes of international concern while the jurisdiction and functioning of the Court shall be governed by the provisions of the Rome Statute.
It also says a case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. The fact of the matter is that PNU/KKK faction of the coalition Government has indeed been very unwilling to have the six suspects investigated let alone to have them prosecuted.
Among the suspects are Kenya’s most powerful people in the Government such as the Head of the Civil Service, Francis Muthaura, and the Deputy Prime Minister, Uhuru Kenyatta. These two people can be said to be mainly responsible for Kibaki’s total unwillingness to cooperate with Luis Moreno-Ocampo in seeing justice being done to hundreds of thousands of IDPs still living in torn tents while depending on donations from the Red Cross.
Though the Government is now trying to create a picture of establishing credible institutions that will conduct investigations, such investigations can never be conducted before the police force has been reformed. Reforming the police force in Kenya is almost an impossible task because it is being protected by the most powerful individuals within the PNU/KKK factions of the Government.
According to the Rome Statute a case is also inadmissible where it has been investigated by the State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute. In the Kenyan situation no investigation what so ever has been done on the six suspects so the issue of not prosecuting them as a result of such an investigation does not arise. It is common knowledge that the PNU/KKK faction of the coalition Government is adamantly, and may be even arrogantly, refusing to accept the fact that the Ocampo Six are suspects at all.
As far as the local prosecution of the six is concerned the PNU/KKK faction of the Government is not only unwilling to conduct the investigations and prosecute the suspects, it is in fact absolutely incapable of doing so as neither the police force has been reformed nor has the local independent tribunal of international standards been established. The Kenyan case would also have been inadmissible if the six had already been tried for conduct which is in the subject of the complaint.
In that case the trial by the ICC would not have been permitted because the Rome Statute clearly says no person who has been tried by another court for crimes against humanity shall be tried by the ICC with respect to the same crimes unless the proceedings in the other court were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
This clearly means even if the PNU/KKK faction of the coalition Government succeeds in getting a deferral, the suspects would still be subjected to proper prosecution and trial that is of internationally accepted standards. ICC also determines a case to be inadmissible if the case is not of sufficient gravity to justify further action by the Court. This is where PNU/KKK’s hope lies. It will mainly depend on the dissenting opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II. In his ruling the Judge believed the case against the Kenyan accused was not strong enough. What is to be noted about that opinion, however, is the fact that he did not think the six were innocent. All he differed about was the strength of the case against the six.
According to the Rome Statute in order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the proceedings, for example, were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court. Again this will make stage managed trials almost impossible to take place in Kenya.
The court also looks at the issue of whether there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice. It also looks at whether the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
The Statute says that in order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. The present judicial system in Kenya is not, when all is said and done, very different from that. Which means PNU/KKK admissibility challenges are likely to be very weak indeed.
Article 16 which deals with the deferral of investigation or prosecution says no investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council has requested the Court to that effect. It also says that request may be renewed by the Council under the same conditions. After meeting informally the Security Council rejected the PNU/KKK request for the deferral of the Kenyan case at ICC.
The only hope for the KKK/PNU to save the six suspects from the charges is by the use of admissibility challenges. The issue of admissibility is to be found in Article 17of the Rome Statute which basically says though the ICC is expected to be complementary to national criminal jurisdictions, it is nevertheless a permanent institution that has the power to exercise its jurisdiction over persons for the most serious crimes of international concern while the jurisdiction and functioning of the Court shall be governed by the provisions of the Rome Statute.
It also says a case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. The fact of the matter is that PNU/KKK faction of the coalition Government has indeed been very unwilling to have the six suspects investigated let alone to have them prosecuted.
Among the suspects are Kenya’s most powerful people in the Government such as the Head of the Civil Service, Francis Muthaura, and the Deputy Prime Minister, Uhuru Kenyatta. These two people can be said to be mainly responsible for Kibaki’s total unwillingness to cooperate with Luis Moreno-Ocampo in seeing justice being done to hundreds of thousands of IDPs still living in torn tents while depending on donations from the Red Cross.
Though the Government is now trying to create a picture of establishing credible institutions that will conduct investigations, such investigations can never be conducted before the police force has been reformed. Reforming the police force in Kenya is almost an impossible task because it is being protected by the most powerful individuals within the PNU/KKK factions of the Government.
According to the Rome Statute a case is also inadmissible where it has been investigated by the State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute. In the Kenyan situation no investigation what so ever has been done on the six suspects so the issue of not prosecuting them as a result of such an investigation does not arise. It is common knowledge that the PNU/KKK faction of the coalition Government is adamantly, and may be even arrogantly, refusing to accept the fact that the Ocampo Six are suspects at all.
As far as the local prosecution of the six is concerned the PNU/KKK faction of the Government is not only unwilling to conduct the investigations and prosecute the suspects, it is in fact absolutely incapable of doing so as neither the police force has been reformed nor has the local independent tribunal of international standards been established. The Kenyan case would also have been inadmissible if the six had already been tried for conduct which is in the subject of the complaint.
In that case the trial by the ICC would not have been permitted because the Rome Statute clearly says no person who has been tried by another court for crimes against humanity shall be tried by the ICC with respect to the same crimes unless the proceedings in the other court were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
This clearly means even if the PNU/KKK faction of the coalition Government succeeds in getting a deferral, the suspects would still be subjected to proper prosecution and trial that is of internationally accepted standards. ICC also determines a case to be inadmissible if the case is not of sufficient gravity to justify further action by the Court. This is where PNU/KKK’s hope lies. It will mainly depend on the dissenting opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II. In his ruling the Judge believed the case against the Kenyan accused was not strong enough. What is to be noted about that opinion, however, is the fact that he did not think the six were innocent. All he differed about was the strength of the case against the six.
According to the Rome Statute in order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the proceedings, for example, were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court. Again this will make stage managed trials almost impossible to take place in Kenya.
The court also looks at the issue of whether there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice. It also looks at whether the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
The Statute says that in order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. The present judicial system in Kenya is not, when all is said and done, very different from that. Which means PNU/KKK admissibility challenges are likely to be very weak indeed.
Monday, March 21, 2011
Muthaura is a threat to stability
The longer Francis Muthaura remains in office the greater the danger of instability becomes in the country. Nothing exposes this sad reality more than the February 28, 2011, secret letter to the ICC President, Christian Wenaweser, by Kenya’s Permanent Representative to the United Nations, Ambassador Macharia Kamau. Either unwittingly or through sheer stubbornness, the letter claims that without Muthaura in office there can be no Government worth talking about in Kenya. It also clearly suggests that Muthaura is the one man who stands out as the most dependable pillar of Kenya’s stability.
To begin with the chances of a comparatively junior diplomat of Macharia’s status writing authoritatively about the shape and structure of the Government of Kenya without the knowledge of the Head of the Civil Service are extremely remote. It is therefore very likely that the real author of such a threatening letter to the ICC was in fact none other than Francis Muthaura himself. His aim was to spell out the dangers of charging him with criminal offences when he was in a position to destabilize not only the Government of Kenya but to create havoc to the stability of the entire region.
No sooner was Macharia’s letter received at the ICC than Moreno-Ocampo revealed his plan to write to President Mwai Kibaki asking him to relieve Muthaura of his job before the PEV cases begin in The Hague. Obviously the prosecutor’s concerns are based on the threats in Macharia’s letter which ,among other things, say the civil servants accused by the ICC are in office and “charged with the responsibility for peace and security”.
The fact of the matter is that there are only two civil servants charged with criminal offences by Moreno-Ocampo: Hussein Ali, who is the Post Master General and today has nothing to do with any security matter; and Francis Muthaura, who chairs the National Security Advisory Committee and knows everything about security matters in Kenya. The innuendo in Macharia’s letter is that with Muthaura behind bars security in the country would be put in jeopardy.
Indeed there is no need to bother scrutinizing that hidden interpretation of Macharia’s letter because he openly says: “The pending ICC indictments pose a real and present danger to the exercise of government and the management of peace and security in the country.” That is a very bold statement to come from a simple ambassador like Macharia. Where did he get the impudence to state openly that the exercise of Government would be jeopardized by the prosecution of Francis Muthaura? When did Muthaura become the same thing as the Government of Kenya? Is this the thinking of Macharia or of Muthaura himself?
Without mentioning their names, Macharia refers to Ruto and Kenyatta as the “front runners” in the next presidential elections which exposes the writer’s ignorance about the real picture of political situation in the country. According to him if the ICC trials go on as planned there is sure to be more bloodshed and instability in Kenya. If Macharia is expressing Muthaura’s points of view concerning the pending cases and the next presidential elections then an extremely sinister scheme to cause problems in this country has been exposed by the threatening letter.
This threat alone, whether it comes from Muthaura or from Macharia, should be enough reason for President Kibaki to suspend or even sack Muthaura while the case against him is still pending in The Hague. The taste and tone of the letter is meant to tell the ICC to drop the case against Muthaura or push the country in a dangerous situation of civil war. Macharia is asking the ICC a question that clearly exposes his intention. He says: “Is the rush to undertake a pre trial process in the political climate of Presidential campaign worth the risk of destabilizing the country and a return to violence and loss of life in Kenya?”
Reading between the lines in that question clearly indicates that Muthaura and Macharia know something the rest of us don’t. That question however explains the reasons why Ruto and Uhuru have started their presidential campaigns so early. It also explains the reasons why their language has been both rough and provocative in the said campaigns.
Macharia’s letter also threatens the entire process of the implementation of the new Constitution. By suggesting that what President Obama described as “significant step forward for Kenya’s democracy” is being subverted by the ICC action right now, Macharia and Muthaura are letting the cat out of the bag that if the case against Muthaura is not stopped the entire process of implementing the new Constitution may be subverted. The simple question to ask after that threat is: Who will subvert that process? From now on Kenyans should be extra vigilant and lookout for MPs who will be deliberately subverting the efforts to implement the new Constitution.
Already the country is witnessing the renewal of Mungiki criminal activities. In Embakasi constituency, for example, they are said to have the blessings of their local MP, Ferdinand Waititu, to continue harassing matatu owners. Are these heightened Mungiki crimes related to the Muthaura/ Macharia threats to the ICC? Why are the police forces not doing anything to protect the wananchi from Mungiki harassment? Is this sin of omission by the Police part of the Muthaura/Macharia threats?
Macharia’s letter to the ICC is also threatening peace and stability in the entire region of East Africa. He admits that at this late stage the country could not get a referral from the ICC by the use of article 19 of the Rome Statutes. That part of the Statutes is on challenges to the jurisdiction of the court or the admissibility a case. It deals with referral issues in situations in which a State can prove that it has adequate local mechanisms to try cases of crimes against humanity at an acceptable international level. Macharia admits Kenya does not have such judicial facilities and blames Attorney General Amos Wako for that weakness.
For this reason Macharia was seeking a 12 month reprieve from the United Nations Security Council in accordance with Article 16 of the Rome Statutes which says no investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council has requested the Court to that effect. It also says that that request may be renewed by the Council under the same conditions. May be it was because of the taste and tone of the letter that the Security Council refused to accept Macharia’s request.
The major reason for Macharia’s request, according to his letter, was to help facilitate the implementation of the new Constitution, the transformation of governance structure as well as the judicial and police systems, while helping “avert potential violence and chaos in Kenya and the East African region at large.” That was the most shocking threat to peace and stability that has ever been made by someone holding a top job in the Government.
The letter did not say what Kibaki’s faction of the Government was doing to stop the potential violence. Indeed Macharia and Muthaura were in fact warning that if the case against the Kenyan suspects, particularly Muthaura, is not stopped, there would be a breakout of chaos in the country and the entire region. In other words, Muthaura is now a threat to peace and stability.
To begin with the chances of a comparatively junior diplomat of Macharia’s status writing authoritatively about the shape and structure of the Government of Kenya without the knowledge of the Head of the Civil Service are extremely remote. It is therefore very likely that the real author of such a threatening letter to the ICC was in fact none other than Francis Muthaura himself. His aim was to spell out the dangers of charging him with criminal offences when he was in a position to destabilize not only the Government of Kenya but to create havoc to the stability of the entire region.
No sooner was Macharia’s letter received at the ICC than Moreno-Ocampo revealed his plan to write to President Mwai Kibaki asking him to relieve Muthaura of his job before the PEV cases begin in The Hague. Obviously the prosecutor’s concerns are based on the threats in Macharia’s letter which ,among other things, say the civil servants accused by the ICC are in office and “charged with the responsibility for peace and security”.
The fact of the matter is that there are only two civil servants charged with criminal offences by Moreno-Ocampo: Hussein Ali, who is the Post Master General and today has nothing to do with any security matter; and Francis Muthaura, who chairs the National Security Advisory Committee and knows everything about security matters in Kenya. The innuendo in Macharia’s letter is that with Muthaura behind bars security in the country would be put in jeopardy.
Indeed there is no need to bother scrutinizing that hidden interpretation of Macharia’s letter because he openly says: “The pending ICC indictments pose a real and present danger to the exercise of government and the management of peace and security in the country.” That is a very bold statement to come from a simple ambassador like Macharia. Where did he get the impudence to state openly that the exercise of Government would be jeopardized by the prosecution of Francis Muthaura? When did Muthaura become the same thing as the Government of Kenya? Is this the thinking of Macharia or of Muthaura himself?
Without mentioning their names, Macharia refers to Ruto and Kenyatta as the “front runners” in the next presidential elections which exposes the writer’s ignorance about the real picture of political situation in the country. According to him if the ICC trials go on as planned there is sure to be more bloodshed and instability in Kenya. If Macharia is expressing Muthaura’s points of view concerning the pending cases and the next presidential elections then an extremely sinister scheme to cause problems in this country has been exposed by the threatening letter.
This threat alone, whether it comes from Muthaura or from Macharia, should be enough reason for President Kibaki to suspend or even sack Muthaura while the case against him is still pending in The Hague. The taste and tone of the letter is meant to tell the ICC to drop the case against Muthaura or push the country in a dangerous situation of civil war. Macharia is asking the ICC a question that clearly exposes his intention. He says: “Is the rush to undertake a pre trial process in the political climate of Presidential campaign worth the risk of destabilizing the country and a return to violence and loss of life in Kenya?”
Reading between the lines in that question clearly indicates that Muthaura and Macharia know something the rest of us don’t. That question however explains the reasons why Ruto and Uhuru have started their presidential campaigns so early. It also explains the reasons why their language has been both rough and provocative in the said campaigns.
Macharia’s letter also threatens the entire process of the implementation of the new Constitution. By suggesting that what President Obama described as “significant step forward for Kenya’s democracy” is being subverted by the ICC action right now, Macharia and Muthaura are letting the cat out of the bag that if the case against Muthaura is not stopped the entire process of implementing the new Constitution may be subverted. The simple question to ask after that threat is: Who will subvert that process? From now on Kenyans should be extra vigilant and lookout for MPs who will be deliberately subverting the efforts to implement the new Constitution.
Already the country is witnessing the renewal of Mungiki criminal activities. In Embakasi constituency, for example, they are said to have the blessings of their local MP, Ferdinand Waititu, to continue harassing matatu owners. Are these heightened Mungiki crimes related to the Muthaura/ Macharia threats to the ICC? Why are the police forces not doing anything to protect the wananchi from Mungiki harassment? Is this sin of omission by the Police part of the Muthaura/Macharia threats?
Macharia’s letter to the ICC is also threatening peace and stability in the entire region of East Africa. He admits that at this late stage the country could not get a referral from the ICC by the use of article 19 of the Rome Statutes. That part of the Statutes is on challenges to the jurisdiction of the court or the admissibility a case. It deals with referral issues in situations in which a State can prove that it has adequate local mechanisms to try cases of crimes against humanity at an acceptable international level. Macharia admits Kenya does not have such judicial facilities and blames Attorney General Amos Wako for that weakness.
For this reason Macharia was seeking a 12 month reprieve from the United Nations Security Council in accordance with Article 16 of the Rome Statutes which says no investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council has requested the Court to that effect. It also says that that request may be renewed by the Council under the same conditions. May be it was because of the taste and tone of the letter that the Security Council refused to accept Macharia’s request.
The major reason for Macharia’s request, according to his letter, was to help facilitate the implementation of the new Constitution, the transformation of governance structure as well as the judicial and police systems, while helping “avert potential violence and chaos in Kenya and the East African region at large.” That was the most shocking threat to peace and stability that has ever been made by someone holding a top job in the Government.
The letter did not say what Kibaki’s faction of the Government was doing to stop the potential violence. Indeed Macharia and Muthaura were in fact warning that if the case against the Kenyan suspects, particularly Muthaura, is not stopped, there would be a breakout of chaos in the country and the entire region. In other words, Muthaura is now a threat to peace and stability.
Thursday, March 10, 2011
Ruto, Sang and Kosgey culpable
There is a very strong case against William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang at The Hague. Count One of murder constituting a crime against humanity alleges that from 30 December 2007 to the end of January 2008, the three, as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of murder in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya, in violation of Articles 7(l)(a) and 25(3)(a) or (d) of the Rome Statute.
Article 7(1) of the Rome Statute is about Crimes against humanity and says for the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender , or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; Enforced disappearance of persons; The crime of apartheid; and Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Count two of Deportation or forcible transfer of population constituting a crime against humanity alleges that the three from 30 December 2007 to the end of January 2008, as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of deportation or forcible transfer of population in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi ), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya in violation of Articles 7( l ) (d) and 25(3)(a) or (d) of the Rome Statute.
Article 25 of the Rome Statutes is on individual criminal responsibility and says the Court shall have jurisdiction over natural persons pursuant to this Statute. It says a person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. It adds that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.
According to the Status such contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or be made in the knowledge of the intention of the group to commit the crime; in respect of the crime of genocide, directly and publicly incites others to commit genocide.
The Rome Statutes also says attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
Count three is on Torture constituting a crime against humanity and claims that from 30 December 2007 to the end of January 2008, the three as -perpetrators, or in the alternative as part of a group of persons acting with a common purpose , committed or contributed to the commission of crime against humanity in the form of torture by inflicting severe physical and metal pain or suffering upon civilians , in locations including Turbo town , the greater Eldoret area ( Huruma, Kiambaa and Langas) Kapsabet town and Nandi Hills town in Uasin Gishu and Nandi Districts , Republic of Kenya in violation of Articles 7(l)(f) and 25(3)(a) or (d) of the Rome Statute.
Count four is on Persecution as a crime against humanity which alleges that the three as co-perpetrators, or in the alternative as part of a group of persons acting with a common purpose , committed or attributed to commission of crime against humanity in the form of persecution . when co-perpetrators and/or persons belonging to their group intentionally and in a discriminatory manner targeted civilians based on their political affiliation, committing murder, torture, and deportation or forcible transfer of population in locations including Turbo town , the greater Eldoret area (Huruma , Kiambaa, Kimumu, Langas and Yamumbi), Kapsabet town and Nandi Hills town in Uasin Gishu and Nandi Districts , Republic of Kenya in violation of Articles 7(l)(h) and 25(3)(a) or (d) of the Rome Statute.
According to the ICC press release the Chamber found that there were reasonable grounds to believe that, immediately after the announcement of the results of the presidential election and specifically from 30 December 2007 until the end of January 2008, an attack was carried out in locations including Turbo town, the greater Eldoret area (encompassing Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town, in the Uasin Gishu and Nandi Districts, Republic of Kenya.
The Chamber further found that there were reasonable grounds to believe that the attack targeted the civilian population namely, the Kikuyu, Kamba and Kisii ethnic groups, which were perceived as PNU supporters. There were also reasonable grounds to believe that the attack against the civilian population was widespread, as evidenced by the number of victims subjected to the attack and those who had been displaced or had taken refuge as a result of such attack, in the different locations targeted, as well as the amount of burning and destruction of properties.
The release said there were reasonable grounds to believe that the violence in the Uasin Gishu District (encompassing Turbo town and the Eldoret area) resulted in burning and destruction of 1475 houses, death of approximately 230 and 505 injured persons and the displacement of 7,800 persons. In the Nandi District (encompassing Kapsabet town and Nandi Hills town), the attack ended in the death of 7 persons and the injury of more than 500. A number of houses and business premises were also looted and burned. The perpetrators left three people dead on 8 January 2008 .
It said the Chamber was of the view that there were reasonable grounds to believe that the network had the capability to perform acts which infringed on basic human values. According to the material presented by Luis Moreno-Ocampo there were reasonable grounds to believe that the network was under responsible command and had an established hierarchy, with Ruto as leader, Kosgey as deputy leader and treasurer and Sang as responsible for communicative purposes.
The Chamber’s arguments in favour of charges against the three are based on very solid evidence based on eyewitness accounts of the victims. It will therefore be extremely difficult for the Attorney General Amos Wako and Justice and Constitutional Affairs Minister Mutula Kilonzo to argue against the admissibility of the case at The Hague. The fact that there are already two judges, Ekaterina Trendafilova and Cuno Tarfusser, who believe Moreno-Ocampo’s case against the Kenyans is strong enough to summon the suspects to The Hague to face criminal charges, proves that the evidence against Ruto, Sang and Kosgey is strong enough to prove them culpable of crimes against humanity.
It is absolutely ridiculous that the PNU/KKK alliance is campaigning in different parts of the world seeking international support for the deferral of the cases against the Ocampo Six when at the same time the PNU part of the Government is planning to challenge the admissibility of the cases at The Hague. The Kibaki faction of the Government cannot challenge the legal status or the powers of the ICC which is very well defined in Article Four of the Rome Statute.
That part of the Rome Statute clearly says the Court shall have international legal personality. It says it shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. The Rome Statute says the Court may exercise its functions and powers on the territory of any State Party and, by special agreement, on the territory of any other State. Which means the ICC could conduct the trials right here in Kenya if it so wished.
The other part of the Rome Statute that Mutula and Wako are threatening to challenge concerns admissibility of the two cases. This issue is to be found in Article Five of the Rome Statute which says the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. It says the Court has jurisdiction in accordance with the Statute with respect to the crime of genocide; crimes against humanity; war crimes; and the crime of aggression.
The arguments presented before the Chamber by Moreno-Ocampo prove beyond any reasonable doubt that crimes against humanity were committed in Kenya during the PEV. Indeed thousands of Kenyans are still living in IDP camps when the Government is spending so much money in useless shuttle diplomacy by Vice President Kalonzo Musyoka. The so-called shuttle diplomacy is bound to bear no fruits as the State Department has publicly declared it will never back it because it is so obviously fictitious and only intended to support impunity in Kenya.
Rather than challenge the admissibility of the two cases at The Hague the Kibaki faction of the Government would do much better by pleading with the two judges to give Kenya more time to establish a local tribunal to try the suspects. To do so successfully the Government has to accept the fact that Ruto, Sang, Kosgey, Muthaura, Uhuru and Ali are indeed suspected criminals in the crimes against humanity that were committed in Kenya soon after the 2007 elections.
That is the only way they can convince the ICC to have a deferral of the cases. But first Kibaki must fire Muthaura , Uhuru and Ali.
Article 7(1) of the Rome Statute is about Crimes against humanity and says for the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender , or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; Enforced disappearance of persons; The crime of apartheid; and Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Count two of Deportation or forcible transfer of population constituting a crime against humanity alleges that the three from 30 December 2007 to the end of January 2008, as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of deportation or forcible transfer of population in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi ), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya in violation of Articles 7( l ) (d) and 25(3)(a) or (d) of the Rome Statute.
Article 25 of the Rome Statutes is on individual criminal responsibility and says the Court shall have jurisdiction over natural persons pursuant to this Statute. It says a person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. It adds that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.
According to the Status such contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or be made in the knowledge of the intention of the group to commit the crime; in respect of the crime of genocide, directly and publicly incites others to commit genocide.
The Rome Statutes also says attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
Count three is on Torture constituting a crime against humanity and claims that from 30 December 2007 to the end of January 2008, the three as -perpetrators, or in the alternative as part of a group of persons acting with a common purpose , committed or contributed to the commission of crime against humanity in the form of torture by inflicting severe physical and metal pain or suffering upon civilians , in locations including Turbo town , the greater Eldoret area ( Huruma, Kiambaa and Langas) Kapsabet town and Nandi Hills town in Uasin Gishu and Nandi Districts , Republic of Kenya in violation of Articles 7(l)(f) and 25(3)(a) or (d) of the Rome Statute.
Count four is on Persecution as a crime against humanity which alleges that the three as co-perpetrators, or in the alternative as part of a group of persons acting with a common purpose , committed or attributed to commission of crime against humanity in the form of persecution . when co-perpetrators and/or persons belonging to their group intentionally and in a discriminatory manner targeted civilians based on their political affiliation, committing murder, torture, and deportation or forcible transfer of population in locations including Turbo town , the greater Eldoret area (Huruma , Kiambaa, Kimumu, Langas and Yamumbi), Kapsabet town and Nandi Hills town in Uasin Gishu and Nandi Districts , Republic of Kenya in violation of Articles 7(l)(h) and 25(3)(a) or (d) of the Rome Statute.
According to the ICC press release the Chamber found that there were reasonable grounds to believe that, immediately after the announcement of the results of the presidential election and specifically from 30 December 2007 until the end of January 2008, an attack was carried out in locations including Turbo town, the greater Eldoret area (encompassing Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town, in the Uasin Gishu and Nandi Districts, Republic of Kenya.
The Chamber further found that there were reasonable grounds to believe that the attack targeted the civilian population namely, the Kikuyu, Kamba and Kisii ethnic groups, which were perceived as PNU supporters. There were also reasonable grounds to believe that the attack against the civilian population was widespread, as evidenced by the number of victims subjected to the attack and those who had been displaced or had taken refuge as a result of such attack, in the different locations targeted, as well as the amount of burning and destruction of properties.
The release said there were reasonable grounds to believe that the violence in the Uasin Gishu District (encompassing Turbo town and the Eldoret area) resulted in burning and destruction of 1475 houses, death of approximately 230 and 505 injured persons and the displacement of 7,800 persons. In the Nandi District (encompassing Kapsabet town and Nandi Hills town), the attack ended in the death of 7 persons and the injury of more than 500. A number of houses and business premises were also looted and burned. The perpetrators left three people dead on 8 January 2008 .
It said the Chamber was of the view that there were reasonable grounds to believe that the network had the capability to perform acts which infringed on basic human values. According to the material presented by Luis Moreno-Ocampo there were reasonable grounds to believe that the network was under responsible command and had an established hierarchy, with Ruto as leader, Kosgey as deputy leader and treasurer and Sang as responsible for communicative purposes.
The Chamber’s arguments in favour of charges against the three are based on very solid evidence based on eyewitness accounts of the victims. It will therefore be extremely difficult for the Attorney General Amos Wako and Justice and Constitutional Affairs Minister Mutula Kilonzo to argue against the admissibility of the case at The Hague. The fact that there are already two judges, Ekaterina Trendafilova and Cuno Tarfusser, who believe Moreno-Ocampo’s case against the Kenyans is strong enough to summon the suspects to The Hague to face criminal charges, proves that the evidence against Ruto, Sang and Kosgey is strong enough to prove them culpable of crimes against humanity.
It is absolutely ridiculous that the PNU/KKK alliance is campaigning in different parts of the world seeking international support for the deferral of the cases against the Ocampo Six when at the same time the PNU part of the Government is planning to challenge the admissibility of the cases at The Hague. The Kibaki faction of the Government cannot challenge the legal status or the powers of the ICC which is very well defined in Article Four of the Rome Statute.
That part of the Rome Statute clearly says the Court shall have international legal personality. It says it shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. The Rome Statute says the Court may exercise its functions and powers on the territory of any State Party and, by special agreement, on the territory of any other State. Which means the ICC could conduct the trials right here in Kenya if it so wished.
The other part of the Rome Statute that Mutula and Wako are threatening to challenge concerns admissibility of the two cases. This issue is to be found in Article Five of the Rome Statute which says the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. It says the Court has jurisdiction in accordance with the Statute with respect to the crime of genocide; crimes against humanity; war crimes; and the crime of aggression.
The arguments presented before the Chamber by Moreno-Ocampo prove beyond any reasonable doubt that crimes against humanity were committed in Kenya during the PEV. Indeed thousands of Kenyans are still living in IDP camps when the Government is spending so much money in useless shuttle diplomacy by Vice President Kalonzo Musyoka. The so-called shuttle diplomacy is bound to bear no fruits as the State Department has publicly declared it will never back it because it is so obviously fictitious and only intended to support impunity in Kenya.
Rather than challenge the admissibility of the two cases at The Hague the Kibaki faction of the Government would do much better by pleading with the two judges to give Kenya more time to establish a local tribunal to try the suspects. To do so successfully the Government has to accept the fact that Ruto, Sang, Kosgey, Muthaura, Uhuru and Ali are indeed suspected criminals in the crimes against humanity that were committed in Kenya soon after the 2007 elections.
That is the only way they can convince the ICC to have a deferral of the cases. But first Kibaki must fire Muthaura , Uhuru and Ali.
Wednesday, March 9, 2011
Uhuru, Muthaura and Ali must go
Now that the International Criminal Court has issued summonses for the Ocampo Six to appear before it and answer criminal charges concerning the post 2007 election violence, there is no point in Uhuru Kenyatta, Francis Muthaura and Hussein Ali continuing to hold public offices. It is about time they had the decency to resign or be shown the door by President Mwai Kibaki.
According to the Press Release by the ICC the Pre-Trial Chamber II, where Luis Moreno-Ocampo’s plea to have the six charged were made, found reasonable grounds to believe that Ruto and Kosgey are criminally responsible as indirect co-perpetrators (i.e., committing crimes through another person(s) in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer and persecution committed in some locations in the Republic of Kenya and during the time-frame specified in the Prosecutor’s application.
The Chamber, however, found that there were no reasonable grounds to believe that Sang was an indirect co-perpetrator, because his contribution to the commission of the crimes was not essential. Instead, the Chamber was satisfied that there were reasonable grounds to believe that Sang otherwise contributed to the commission of the crimes in accordance with article 25(3) (d) of the Rome Statute. As to the count of torture, the Chamber did not find reasonable grounds to believe that acts of torture were committed.
According to the release the Chamber found reasonable grounds to believe that Muthaura and Kenyatta were criminally responsible as indirect co-perpetrators in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts. The Chamber, however, found that there were no reasonable grounds to believe that Ali was an indirect co-perpetrator, because his contribution to the commission of the crimes was not essential.
Instead, the Chamber was satisfied that there were reasonable grounds to believe that Ali otherwise contributed to the commission of the crimes in accordance with article 25(3) (d) of the Rome Statute. Finally, the Chamber found no reasonable grounds to believe that, in relation to Kisumu and Kibera, the alleged perpetrators committed the said crimes.
When Moreno-Ocampo first accused Muthaura, Ali and Uhuru, Mwai Kibaki claimed that the three could not be asked to step down from the positions they held since the allegation by Moreno-Ocampo were just that- allegations. But today they are a little bit more than allegations. They have been examined by Pre-Trial Chamber II, which had the powers to either reject Moreno-Ocampo’s claims or accept them, and found to have enough grounds on which to place charges against the accused.
It so happens that two judges out of three agreed that there were enough grounds to summon the suspects before the ICC and place charges against them. The two are Judge Ekaterina Trendafilova and Judge Cuno Tarfusser. According to the release the third judge, Hans-Peter Kaul, disagreed with the other two in both cases on the question of whether the crimes alleged amounted to crimes against humanity under the jurisdictional ambit of the Court.
The release said he held that Moreno-Ocampo had failed in both cases to establish reasonable grounds to believe that the crimes were committed pursuant to or in furtherance of the policy of an organization within the meaning of article 7(2)(a) of the Rome Statute which describes crimes against humanity.It said Hans-Peter Kaul believed that the Court lacked subject-matter jurisdiction in the situation in the Republic of Kenya, including both cases. It also said the dissenting opinions would be issued in due course.
It is absolutely ridiculous that Uhuru, Muthaura and Ali continue to hold public offices as Deputy Prime Minister and Minister for Finance,the Head of Civil Service and Post Master General, when the Pre-Trial Chamber II at The Hague believes that from on or about 27 December 2007 to 29 February 2008, they committed or contributed to the commission of crimes against humanity, namely the murder of civilian supporters of the Orange Democratic Movement political party in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(l)(a) and 25(3)(a) or (d) of the Rome Statute.
The Chamber also found that there were reasonable grounds to believe that from on or about 24 January 2008 until 31 January 2008, the Mungiki criminal organization carried out an attack against the non-Kikuyu population perceived as supporting the ODM (mostly belonging to Luo, Luhya and Kalenjin ethnic groups) in Nakuru and Naivasha. According to the material presented, the events in Nakuru resulted in at least 112 deaths, 39 reported cases of rape, at least five cases of forcible circumcision and the displacement of thousands of people. The Chamber found close ties between Uhuru and Mungiki.
What is shocking about the PNU/KKK reaction to all these serious allegations is the fact that they still want to send Kalonzo Musyoka and a team of Cabinet Minister to the United Nations to plea for the deferral of the cases against the six instead of making that plea at the Pre-Trial Chamber II. No one in the PNU/KKK camp is denying that the crimes were committed. All they are saying is that the trial for those offences should take place in Kenya even though the same group is frustrating every effort of establishing a credible local tribunal to try the cases.
The Chamber concluded that it was satisfied that there were reasonable grounds to believe that Muthaura and Kenyatta were criminally responsible as indirect co-perpetrators under article 25(3)(a) of the Statute and that Ali was criminally responsible as having contributed to crimes committed by a group of persons within the meaning of article 25(3)(d) of the Statute for a number of acts which constituted crimes against humanity committed from on or about 24 January 2008 until 31 January 2008.
These acts included murder committed in Nakuru and Naivasha within the meaning of article 7(1) (a) of the Statute. Forcible transfer of population committed in Nakuru and Naivasha within the meaning of article 7(l) (d) of the Statute. Rape committed in Nakuru within the meaning of article 7(1 )(g) of the Statute . Other inhumane acts committed in Nakuru and Naivasha within the meaning of article 7(l) (k) of the Statute. Persecution committed in Nakuru and Naivasha within the meaning of article 7(l) (h) of the Statute.
According to the release the Chamber decides to issue summonses to appear, pursuant to article 58(7) of the Statute, for the three persons, being satisfied that this measure was sufficient to ensure their appearance before the Court. Though the Government has indicated it intends to challenge the admissibility of these allegations the fact remains that Muthaura, Uhuru and Ali are facing criminal charges at The Hague. They can therefore not hold public offices while those charges are pending.
According to the Press Release by the ICC the Pre-Trial Chamber II, where Luis Moreno-Ocampo’s plea to have the six charged were made, found reasonable grounds to believe that Ruto and Kosgey are criminally responsible as indirect co-perpetrators (i.e., committing crimes through another person(s) in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer and persecution committed in some locations in the Republic of Kenya and during the time-frame specified in the Prosecutor’s application.
The Chamber, however, found that there were no reasonable grounds to believe that Sang was an indirect co-perpetrator, because his contribution to the commission of the crimes was not essential. Instead, the Chamber was satisfied that there were reasonable grounds to believe that Sang otherwise contributed to the commission of the crimes in accordance with article 25(3) (d) of the Rome Statute. As to the count of torture, the Chamber did not find reasonable grounds to believe that acts of torture were committed.
According to the release the Chamber found reasonable grounds to believe that Muthaura and Kenyatta were criminally responsible as indirect co-perpetrators in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts. The Chamber, however, found that there were no reasonable grounds to believe that Ali was an indirect co-perpetrator, because his contribution to the commission of the crimes was not essential.
Instead, the Chamber was satisfied that there were reasonable grounds to believe that Ali otherwise contributed to the commission of the crimes in accordance with article 25(3) (d) of the Rome Statute. Finally, the Chamber found no reasonable grounds to believe that, in relation to Kisumu and Kibera, the alleged perpetrators committed the said crimes.
When Moreno-Ocampo first accused Muthaura, Ali and Uhuru, Mwai Kibaki claimed that the three could not be asked to step down from the positions they held since the allegation by Moreno-Ocampo were just that- allegations. But today they are a little bit more than allegations. They have been examined by Pre-Trial Chamber II, which had the powers to either reject Moreno-Ocampo’s claims or accept them, and found to have enough grounds on which to place charges against the accused.
It so happens that two judges out of three agreed that there were enough grounds to summon the suspects before the ICC and place charges against them. The two are Judge Ekaterina Trendafilova and Judge Cuno Tarfusser. According to the release the third judge, Hans-Peter Kaul, disagreed with the other two in both cases on the question of whether the crimes alleged amounted to crimes against humanity under the jurisdictional ambit of the Court.
The release said he held that Moreno-Ocampo had failed in both cases to establish reasonable grounds to believe that the crimes were committed pursuant to or in furtherance of the policy of an organization within the meaning of article 7(2)(a) of the Rome Statute which describes crimes against humanity.It said Hans-Peter Kaul believed that the Court lacked subject-matter jurisdiction in the situation in the Republic of Kenya, including both cases. It also said the dissenting opinions would be issued in due course.
It is absolutely ridiculous that Uhuru, Muthaura and Ali continue to hold public offices as Deputy Prime Minister and Minister for Finance,the Head of Civil Service and Post Master General, when the Pre-Trial Chamber II at The Hague believes that from on or about 27 December 2007 to 29 February 2008, they committed or contributed to the commission of crimes against humanity, namely the murder of civilian supporters of the Orange Democratic Movement political party in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(l)(a) and 25(3)(a) or (d) of the Rome Statute.
The Chamber also found that there were reasonable grounds to believe that from on or about 24 January 2008 until 31 January 2008, the Mungiki criminal organization carried out an attack against the non-Kikuyu population perceived as supporting the ODM (mostly belonging to Luo, Luhya and Kalenjin ethnic groups) in Nakuru and Naivasha. According to the material presented, the events in Nakuru resulted in at least 112 deaths, 39 reported cases of rape, at least five cases of forcible circumcision and the displacement of thousands of people. The Chamber found close ties between Uhuru and Mungiki.
What is shocking about the PNU/KKK reaction to all these serious allegations is the fact that they still want to send Kalonzo Musyoka and a team of Cabinet Minister to the United Nations to plea for the deferral of the cases against the six instead of making that plea at the Pre-Trial Chamber II. No one in the PNU/KKK camp is denying that the crimes were committed. All they are saying is that the trial for those offences should take place in Kenya even though the same group is frustrating every effort of establishing a credible local tribunal to try the cases.
The Chamber concluded that it was satisfied that there were reasonable grounds to believe that Muthaura and Kenyatta were criminally responsible as indirect co-perpetrators under article 25(3)(a) of the Statute and that Ali was criminally responsible as having contributed to crimes committed by a group of persons within the meaning of article 25(3)(d) of the Statute for a number of acts which constituted crimes against humanity committed from on or about 24 January 2008 until 31 January 2008.
These acts included murder committed in Nakuru and Naivasha within the meaning of article 7(1) (a) of the Statute. Forcible transfer of population committed in Nakuru and Naivasha within the meaning of article 7(l) (d) of the Statute. Rape committed in Nakuru within the meaning of article 7(1 )(g) of the Statute . Other inhumane acts committed in Nakuru and Naivasha within the meaning of article 7(l) (k) of the Statute. Persecution committed in Nakuru and Naivasha within the meaning of article 7(l) (h) of the Statute.
According to the release the Chamber decides to issue summonses to appear, pursuant to article 58(7) of the Statute, for the three persons, being satisfied that this measure was sufficient to ensure their appearance before the Court. Though the Government has indicated it intends to challenge the admissibility of these allegations the fact remains that Muthaura, Uhuru and Ali are facing criminal charges at The Hague. They can therefore not hold public offices while those charges are pending.
Wednesday, March 2, 2011
Kenyan coalition rocky but active
It is three years since Mwai Kibaki and Raila Odinga agreed to establish a coalition government to save the country from a downward trend towards a civil war. Today the examination of the success or failure of that Government can be done through a SWOT analysis that would indicate the strength, weakness, opportunities and threats challenging the fragile government.
Among the most significant achievements of the Kibaki-Raila Government is getting Kenyans to agree on a new Constitution with one of the best Bill of Rights in the world. The achievement of that goal, which was one of the most important objectives of Agenda Four, marks the establishment of the most noteworthy pillars of the coalition, without which there could have been no Government worth talking about in this country.
Yet the achievement of that goal was not an easy undertaking. Around both the President in PNU and the Prime Minister in ODM were political giants determined to wreck the new Constitution when it was still in its embryonic stages. Around Kibaki were Uhuru Kenyatta, John Michuki, Kalonzo Musyoka and the most powerful people who constitute the Clergy in this country. Around Raila were William Ruto and the most powerful land owners in the fertile Rift Valley.
All these people joined hands to form a formidable force opposed to the new Constitution mainly because of its Bill of Rights and Chapter Five on land. Those parts of the new Constitution threaten to take away the power concentrated in very few hands since independence and distribute it to the people on Kenya.
Long after the promulgation of the Constitution the tycoons of Kenya are still determined to torpedo it at every stage of its implementation. Yet Kibaki is still harbouring them in his kitchen cabinet. If there is any major challenge to the continued existence of the coalition Government in Kenya it is the continued presence of people determined to wreck the constitution in very important positions of the Government.
One of the strengths of the Kibaki-Raila coalition is the existence of Agenda Four as the yardstick to measure its achievements. Described as the long standing issues that have continued to pose serious social, economic and political problems in Kenya, Agenda Four suggests elaborate solutions to those problems. The regular monitoring by the international community of how Agenda Four is being implemented has given the coalition Government a collection of assignments to be achieved before its time elapses.
Every time Agenda four is reexamined the success or failure of the Kibaki Government can clearly be scrutinized. Among the most important items of Agenda Four include constitutional, legal and institutional reforms which have by and large been achieved though a lot has yet to be fulfilled. Other Agenda Four goals include tackling poverty and inequality, and combating regional development imbalances which are far from being achieved.
Tackling unemployment especially among the youth is yet another Agenda Four item that has yet to be achieved. Consolidation of national cohesion and unity can be said to have been implemented because the National Cohesion and Integration Act is in full force. The same, however, cannot be said about transparency, accountability and impunity which are still the nation’s most problematic headaches.
Another major strength of the Kibaki-Raila regime is based on the existence of a fairly educated population which is both hardworking and politically awake to its fundamental first and second generation human rights. Kenya’s integrated urban population can be said to be politically miles ahead of its leaders who are still bogged down on petty tribal rivalry. Indeed it is due to Kenyan population’s political maturity that the new Constitution was overwhelmingly supported by almost everyone across the country.
The coalition weaknesses include tribalism which still exists in the minds of parochial leaders who have always survived because of the existence of tribal animosity among various peoples of Kenya. Because of tribalism, alliances like the KKK have been established by William Ruto, Uhuru Kenyatta and Kalonzo Musyoka. The future of such alliances however appears to be very threatened due to political influence from the urban areas.
The most challenging weakness of the Kibaki-Raila regime will always be corruption, poverty, unemployment among the youth and greed among the so-called leaders. Though PLO Lumumba took over his anti-corruption job with a lot of vigour and dynamism that initial heartiness seems to be dwindling mainly because he started by stepping on too sensitive toes of political giants who must have hit back at him in a clandestine manner. Otherwise there is no plausible explanation for his abrupt silence which signifies unhealthy inactivity.
Among the opportunities confronting the coalition government is the fact that Kenya is the economic hub of the region. Whenever there is political stability in the country the economy improves to the advantage of many other countries in East Africa. These include Tanzania, Uganda, Burundi, Rwanda and now South Sudan. The importance of Kenya to this part of Africa makes the international community determined to maintain the political stability of the country.
With the international goodwill for Kenya extending to both the countries of the East and the West the economic stability of this country guarantees future prosperity of the entire region. Political insecurity in the Arab world, however, threatens the rise of oil prices that could endanger the economies of Kenya and of the countries around it. But if the Middle East countries become politically stable with the expected rapidity of the departure of despotism, Kenya and indeed the entire eastern Africa region, stands to gain from boosting of traditional trade between the Middle East and East Africa.
The threats facing the Rail –Kibaki regime include lack of truly well organized political parties that would see the country move from the current transition into the future in a smooth manner. Realizing the political metamorphosis the country is going through could push them into the disappearance from the political scene, the current political leadership is desperately trying to perpetuate the status quo by creating artificial wars between tribes. The existence of KKK alliance is a desperate attempt to unite the Kikuyus, Kambas and Kalenjins between now and the next general elections.
The KKK unity, however, cannot last long because within it are leaders who all expect to be Kibaki’s successors at the State House. Political parties that don’t have meaningful manifestos that would attract a large number of educated Kenyans will have no place in future politics of this country. The Kibaki-Raila regime will most certainly last until the next general election mainly because all the leaders in the current Government love their lucrative jobs so much that they would do anything to protect them. When the time for the coalition government officially comes to an end, the political confrontation that will take place in the country will be fierce and ferociously brutal. Only the fittest will survive and it will be the fittest that will get the support of the people.
Among the most significant achievements of the Kibaki-Raila Government is getting Kenyans to agree on a new Constitution with one of the best Bill of Rights in the world. The achievement of that goal, which was one of the most important objectives of Agenda Four, marks the establishment of the most noteworthy pillars of the coalition, without which there could have been no Government worth talking about in this country.
Yet the achievement of that goal was not an easy undertaking. Around both the President in PNU and the Prime Minister in ODM were political giants determined to wreck the new Constitution when it was still in its embryonic stages. Around Kibaki were Uhuru Kenyatta, John Michuki, Kalonzo Musyoka and the most powerful people who constitute the Clergy in this country. Around Raila were William Ruto and the most powerful land owners in the fertile Rift Valley.
All these people joined hands to form a formidable force opposed to the new Constitution mainly because of its Bill of Rights and Chapter Five on land. Those parts of the new Constitution threaten to take away the power concentrated in very few hands since independence and distribute it to the people on Kenya.
Long after the promulgation of the Constitution the tycoons of Kenya are still determined to torpedo it at every stage of its implementation. Yet Kibaki is still harbouring them in his kitchen cabinet. If there is any major challenge to the continued existence of the coalition Government in Kenya it is the continued presence of people determined to wreck the constitution in very important positions of the Government.
One of the strengths of the Kibaki-Raila coalition is the existence of Agenda Four as the yardstick to measure its achievements. Described as the long standing issues that have continued to pose serious social, economic and political problems in Kenya, Agenda Four suggests elaborate solutions to those problems. The regular monitoring by the international community of how Agenda Four is being implemented has given the coalition Government a collection of assignments to be achieved before its time elapses.
Every time Agenda four is reexamined the success or failure of the Kibaki Government can clearly be scrutinized. Among the most important items of Agenda Four include constitutional, legal and institutional reforms which have by and large been achieved though a lot has yet to be fulfilled. Other Agenda Four goals include tackling poverty and inequality, and combating regional development imbalances which are far from being achieved.
Tackling unemployment especially among the youth is yet another Agenda Four item that has yet to be achieved. Consolidation of national cohesion and unity can be said to have been implemented because the National Cohesion and Integration Act is in full force. The same, however, cannot be said about transparency, accountability and impunity which are still the nation’s most problematic headaches.
Another major strength of the Kibaki-Raila regime is based on the existence of a fairly educated population which is both hardworking and politically awake to its fundamental first and second generation human rights. Kenya’s integrated urban population can be said to be politically miles ahead of its leaders who are still bogged down on petty tribal rivalry. Indeed it is due to Kenyan population’s political maturity that the new Constitution was overwhelmingly supported by almost everyone across the country.
The coalition weaknesses include tribalism which still exists in the minds of parochial leaders who have always survived because of the existence of tribal animosity among various peoples of Kenya. Because of tribalism, alliances like the KKK have been established by William Ruto, Uhuru Kenyatta and Kalonzo Musyoka. The future of such alliances however appears to be very threatened due to political influence from the urban areas.
The most challenging weakness of the Kibaki-Raila regime will always be corruption, poverty, unemployment among the youth and greed among the so-called leaders. Though PLO Lumumba took over his anti-corruption job with a lot of vigour and dynamism that initial heartiness seems to be dwindling mainly because he started by stepping on too sensitive toes of political giants who must have hit back at him in a clandestine manner. Otherwise there is no plausible explanation for his abrupt silence which signifies unhealthy inactivity.
Among the opportunities confronting the coalition government is the fact that Kenya is the economic hub of the region. Whenever there is political stability in the country the economy improves to the advantage of many other countries in East Africa. These include Tanzania, Uganda, Burundi, Rwanda and now South Sudan. The importance of Kenya to this part of Africa makes the international community determined to maintain the political stability of the country.
With the international goodwill for Kenya extending to both the countries of the East and the West the economic stability of this country guarantees future prosperity of the entire region. Political insecurity in the Arab world, however, threatens the rise of oil prices that could endanger the economies of Kenya and of the countries around it. But if the Middle East countries become politically stable with the expected rapidity of the departure of despotism, Kenya and indeed the entire eastern Africa region, stands to gain from boosting of traditional trade between the Middle East and East Africa.
The threats facing the Rail –Kibaki regime include lack of truly well organized political parties that would see the country move from the current transition into the future in a smooth manner. Realizing the political metamorphosis the country is going through could push them into the disappearance from the political scene, the current political leadership is desperately trying to perpetuate the status quo by creating artificial wars between tribes. The existence of KKK alliance is a desperate attempt to unite the Kikuyus, Kambas and Kalenjins between now and the next general elections.
The KKK unity, however, cannot last long because within it are leaders who all expect to be Kibaki’s successors at the State House. Political parties that don’t have meaningful manifestos that would attract a large number of educated Kenyans will have no place in future politics of this country. The Kibaki-Raila regime will most certainly last until the next general election mainly because all the leaders in the current Government love their lucrative jobs so much that they would do anything to protect them. When the time for the coalition government officially comes to an end, the political confrontation that will take place in the country will be fierce and ferociously brutal. Only the fittest will survive and it will be the fittest that will get the support of the people.
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